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Suing Big Pharma for the Opioid Epidemic Is Too Little, Too Late

Big Pharma and Big Tobacco may sound like the same kind of villain, but there are key differences

In 1964, the surgeon general released a landmark report linking tobacco to lung cancer and other deadly diseases. Thirty years later, more than 40 states filed Medicaid and class action lawsuits against the four big tobacco companies, notoriously known as the “majors”—Philip Morris and R.J. Reynolds, to name a couple—seeking relief for harms smoking caused citizens. The surgeon general’s report, along with leaked internal memos showing tobacco companies had vast knowledge of peddling a dangerous and addictive product, laid the framework for a strong legal case.

And we all know how that went. Known as the Tobacco Master Settlement Agreement, the landmark 1997 verdict required Big Tobacco to pay $368 billion over the next 25 years. The humongous sum — still being paid out to this day — was slated to cover the costs of treating smoking-related illness, fund nationwide anti-smoking campaigns, and support health care for millions of uninsured children. Twenty years later, the national smoking rate has plunged to historic lows, with only 15 percent of adults still smoking. The ongoing tragedy, however, is that smoking prevalence among low-educated Americans, particularly in rural areas, remains abnormally high at 40 percent.

Rural America is suffering from yet another public health calamity. Since 1999, enough Americans with high school diplomas or less have fatally overdosed on opioid pain relievers — now, increasingly, heroin and fentanyl — to increase the nation’s overall death rate for the first time in two decades. Though fatal overdoses are prevalent across demographics, these rural states (with heavy tobacco use) are the ones that led the blitz against Big Tobacco companies and have also been hit hardest by the overprescription of opioids. Take West Virginia, where in six years some 780 million painkillers showered the state, killing more than 1,700 people, according to an investigation by the Sunday Gazette-Mail. A fresh wave of lawsuits against pharmaceutical companies that manufacture opioids, filed by more than 25 states and local governments, are billed as the new Big Tobacco lawsuits.

No surprise, the Big Pharma lawsuits have attracted the same attorneys from the Big Tobacco lawsuits. Plaintiff attorney Joe Rice, the lead negotiator in a $250 billion settlement with the tobacco industry, has filed lawsuits against Purdue Pharma, Endo Pharmaceuticals, Teva Pharmaceuticals, and Johnson & Johnson, among others, in New Hampshire, Santa Clara County in California, and Chicago. Attorney Mike Moore, who helped Rice takedown Big Tobacco, is involved in cases against Big Pharma in Ohio and Mississippi.

States and municipalities devastated by opioids are seeking compensation from Big Pharma to help treat the morbidity caused by a public health disaster decades in the making. But is the case against Big Pharma as cut-and-dried as the one against Big Tobacco? Are these two the same villain?

Big Pharma is the price-gouging enemy everyone loves to hate. But the case against it, despite striking similarities between opioids and tobacco, is thin. The most relevant (and obvious) similarity for legal purposes is that both products are manufactured by powerful companies that downplayed the risk of addiction and other health hazards through deceptive marketing, therefore knowingly posing indisputable harms to consumers.

The case against Big Pharma is already facing obstacles. In the suits filed by the City of Chicago against five pharmaceutical manufacturers, four have already been dismissed for lacking specificity, meaning the plaintiff failed to show specific instances in which the drug companies misled doctors or consumers. The one remaining lawsuit is against Purdue Pharma, the manufacturer of OxyContin.

In 2007, Purdue Pharma paid more than $600 million in fines and fees for misleading regulators, doctors, and patients about the risk of addiction associated with its billion-dollar blockbuster drug. The company, along with three executives, pleaded guilty to “misbranding” OxyContin, a criminal violation. A Los Angeles Times investigation, based on leaked internal memos, showed how Purdue falsified the claim that its drug lasted longer than it really did, requiring patients to dose more frequently, which increased the risk of addiction and fatal overdoses. Purdue Pharma is no doubt among the present-day “majors” of opioid manufacturing.

But the 2007 verdict against Purdue makes future cases against it even harder to try. After pleading guilty, Purdue ceased its deceptive marketing campaigns and added explicit warnings to its drug that it may cause addiction. Purdue also stopped making the original version of OxyContin, which was easy to misuse. The reformulated version uses “abuse-deterrent technology” that makes the drug nearly impossible to crush, snort, or inject. These new cases arguing that Purdue, 10 years later, is still responsible for causing addiction en masse don’t hold much water.

There are also fundamental differences between opioids and tobacco that complicate the case against Big Pharma. Unlike tobacco — which can harm not only smokers but also the nonsmokers around them — prescription opioids are FDA-approved and a medical necessity for some patients. If you’re an adult, you have probably taken an opioid for pain at some point in your life, and if you followed your doctor’s orders, it’s unlikely you developed a full-blown addiction. If you took more than your doctor prescribed, is the company that manufactured the drug responsible for that misuse? Lawyers will have a tough time arguing around that. Nonetheless, the story of doctors prescribing unsuspecting patients into addiction is one we constantly hear and the one media loves to dramatize. It happens to be the exception rather than the rule.

In Vice’s health vertical Tonic, neuroscience journalist Maia Szalavitz sums up how advocates and the media often get the opioid story wrong:

Some 70 percent of the population is exposed to medical opioids during their lifetime. If 26 percent of these people became addicted, we’d expect to see tens of millions of people with opioid addiction and hundreds of thousands of overdose deaths. The true addiction figure is roughly 2.5 million, or about 1 percent of the adult population, and the actual number of fatalities is horrifying enough, but it was just around 33,000 deaths in 2015.

In short, opioids taken alone are not the death sentence they’re so often made out to be. In fact, to this day, millions of patients depend on them for daily function.

That doesn’t mean prescribed opioids aren’t dangerous even when properly prescribed. Someone like me, who went to rehab for a heroin addiction, is at increased risk for developing an addiction to painkillers. But if you don’t have a history of substance use disorder, or if addiction doesn’t run in your family and your life is socially and economically stable, then you’re far less likely to become addicted to these pain medications. Opioids can be simultaneously harmful for someone like me and a lifesaver for someone in pain. On the flip side, tobacco is harmful and addictive for all of us — and that’s what those lawyers were able to prove. These recent attempts to compare the two and wipe out an industry that often helps people is a doomed enterprise.

Another critical difference between opioids and tobacco is the supply chain. Unlike tobacco, which was sold directly to consumers and used as directed, opioids run through several intermediaries before reaching consumers. This is where blame can diffuse, spreading way beyond Big Pharma’s deceptive marketing. Both the Drug Enforcement Agency (DEA) and the Food and Drug Administration (FDA) failed to properly regulate the pharmaceutical industry. In fact, the DEA succumbed to pressure from the pharmaceutical lobby when it eased up on investigating wholesale distribution companies, like the ones that let hundreds of millions of painkillers spread throughout West Virginia.

In addition, suing Big Pharma does not fix the health insurance sector, which played a significant role in fueling the mass prescription of opioids. Insurance companies incentivized the use of opioids as a cheap solution for pain patients seeking treatment in a broken system of care.

What’s formally known as the nation’s opioid epidemic is a problem both dynamic and evolving. Since 2012, the nonmedical use, or misuse, of opioids has been declining. Opioid prescribing also peaked during 2012 and has been falling ever since. As a result, deaths from prescription painkillers have stabilized. This is a sign that prescription pain relievers are no longer driving the overdose crisis today. Despite declining prescription rates, the number of fatal overdoses continues to break records year after year.

In 2016, illicit fentanyl, which no doctor prescribes and no pharmaceutical company manufactures, will exceed the number of deaths from both heroin and prescription painkillers. Epidemiologically speaking, it’s difficult to pin these stunning mortality rates to Big Pharma.

Blaming companies like Purdue for the rising death toll from heroin and fentanyl misdiagnoses the problems driving the epidemic. The 100 or so people dying every day from opioid overdoses in 2017 were unlikely affected by a shady marketing campaign from 10 years ago. Families perpetually trapped in cycles of poverty and neglect, the cycles of despair crippling places like West Virginia, need more help than a settlement from Big Pharma can offer.